Sinn v. City of New York

304 A.D.2d 504, 758 N.Y.S.2d 328, 2003 N.Y. App. Div. LEXIS 4498

Opinion

Order, Supreme Court, New York County (Robert Lippmann, J.), entered on or about March 22, 2002, which, in an action for personal injuries sustained by plaintiffs decedent and for loss of consortium sustained by plaintiff, insofar as appealed from, granted defendants’ cross motions pursuant to CPLR 3126 to dismiss the action, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered June 26, 2002, which granted plaintiffs motion to reargue, and, upon reargument, adhered to the prior order, unanimously dismissed, without costs, as academic.

In disobedience of a series of court orders, the elderly decedent did not appear for examination before trial and his attorney, who continues to represent his estate, did not comply with court directions to commence a guardianship proceeding. The result of this repeated disobedience was that the decedent died before defendants had an opportunity to examine him. Absent a reasonable excuse for the disobedience, dismissal of the action was a proper exercise of discretion (see Oberlander v Levi, 207 AD2d 437 [1994]; Pimental v City of New York, 246 AD2d 467, 468 [1998]). We have considered and rejected plaintiffs other arguments. Concur — Nardelli, J.P., Andrias, Sullivan, Rosenberger and Wallach, JJ.